When the issue of a woman's consent is blurred by drink

The main reason why police and prosecutors still struggle to turn most rape complaints into convictions is that the majority of allegations involve people who know each other and have been drinking.

This means that the issue at stake in any trial - or in the process of deciding whether there is sufficient evidence to go to court - is not whether sex took place, but whether consent was given.

It is here that the involvement of alcohol can create serious problems because of the effect that large quantities of drink can have on a person's ability to recall accurately what happened, and what was said, during a drunken sexual encounter.

As Baroness Stern emphasises today, for men in such situations the law is clear: a woman must give her consent, even when drunk, and forced sex cannot be excused on the grounds that the man's judgment was blurred. More difficult for police and prosecutors - and ultimately jurors - to establish, however, is whether a woman has given consent or not.

The first issue that must be determined is whether the woman was so drunk that she was incapable of giving consent. Ministers had wanted to clarifly this by issuing statutory guidance to define exactly when this point might be reached, but abandoned their efforts after a Court of Appeal ruling two years ago.

This ruling, which led to the acquittal of software engineer Benjamin Bree, stated that even a very drunk woman could be capable of giving consent and that the amount of alcohol needed to take a victim beyond this point varied from person to person.

The effect is that each case must be judged individually, rather than by any set guidelines, with the inevitable result that obtaining a conviction can often remain difficult when the man claims that consent was given.

Similarly, the other problem caused by drink is the effect that it has on a victim's memory of an alleged attack. The most famous illustration of this came when the case against student Ruairi Dougal was withdrawn after his victim admitted that she could not remember whether she had given her consent or not.

While all these factors help explain the relatively low proportion of convictions, other problems that are more easily addressed remain.

The failure of police on occasions to take victims' complaints seriously, coupled with the varied provision of medical help to gather evidence, and a sometimes unsympathetic approach to complainants as they take their cases through the justice system, all need to be addressed.